When you were in civics class, you probably learned this formulation. The legislative branch makes laws; the executive branch carries out laws; and the judicial branch interprets laws. Justice Neil Gorsuch is using various Supreme Court opinions to return back to that constitutional order.
Part of the problem is that various members of Congress have been willing to cede power to the executive branch. Sometimes that makes sense when bureaucrats need to have some discretion in how to implement certain rules and regulations. In most cases, Congress has decided to abdicate its rule in our republic.
One notable example was the Affordable Care Act (known as Obamacare). On page after page, you could read phrases like: as “the Secretary shall determine.” The Secretary of HHS was given enormous power and authority in how to implement the law. Her department ended up issuing over 12,000 pages of regulations based on the original law.
In a number of opinions, Justice Gorsuch has been essentially saying to Congress, “do your job.” In his latest opinion, he criticizes Congress for writing a vague federal statute dealing with prison sentences. His argument is “a vague law is no law at all.” He criticizes lawmakers for statutory language that “provides no reliable way to determine which offenses qualify as crimes of violence.”
I predict this problem with Congress will get worse. One member of Congress that I interviewed warns us about “message bills” written by the Democrats in the House. The bills are poorly written because they are merely intended to send a message. They don’t expect the Senate to approve them or for the president to sign them. As more of these vague bills are passed, the sloppiness will extend to other important pieces of legislation. So Justice Gorsuch will have his work cut out for him.